Bullock v. Widnall

• Decision Date: 22 October 1996
• Docket Number: Civil Action No. 95-D-1031-N.
• Citation: 953 F.Supp. 1461
• Parties: Donald E. BULLOCK, Plaintiff, v. Sheila E. WIDNALL, Secretary of the Air Force, Department of the Air Force, Department of Defense, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

953 F.Supp. 1461

Donald E. BULLOCK, Plaintiff, v. Sheila E. WIDNALL, Secretary of the Air Force, Department of the Air Force, Department of Defense, et al., Defendants.

Civil Action No. 95-D-1031-N.

United States District Court, M.D. Alabama, Northern Division.

October 22, 1996.

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Boyd F. Campbell, Patricia D. Warner, Montgomery, AL, for plaintiff.

Patricia A. Snyder, Leura J. Garrett, U.S. Attorney's Office, Montgomery, AL, Bernard E. Doyle, Air Force Legal Services, Arlington, VA, for defendants.

MEMORANDUM OPINION AND ORDER

DE MENT, District Judge.

Before the court is defendants' motion for summary judgment and supporting brief filed July 31, 1996. On September 4, 1996 plaintiff, Donald E. Bullock, filed his response and brief in support of his response to defendants' motion for summary judgment, motion for judgment on the pleadings, and motion for injunctive relief. Defendants filed a reply thereto on September 9, 1996. After careful consideration of the arguments of counsel, the relevant case law and the record as a whole, the court finds that the defendants' motion is due to be granted in part and denied in part.

JURISDICTION

Based upon 28 U.S.C. § 1331¹ and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16,² the court properly exercises subject matter jurisdiction over this action. The parties do not contest personal jurisdiction or venue.

FINDINGS OF FACT

Plaintiff Donald Bullock ("Bullock") brings this discrimination action against defendants based upon race and retaliation for engaging in protected activities. Compl. ¶ 50. Bullock was employed with the United States Air Force as an electrical foreman for approximately ten years. Bullock Aff. ¶ 1. While working at Gunter Air Force Base, Bullock filed 19 complaints with the Maxwell Air Force Base Equal Employment Opportunity ("EEO") Complaints Office and one appeal with the Merit Systems Protection Board (MSPB). Defs.' Br. in Supp. of Mot. Sum.J. ("Defs.' Br.") ¶ 3. Alleging a pattern and practice of retaliation by the defendants, Bullock's judicial Complaint ("Complaint"), filed August 3, 1995, is based in large part on the 19 EEO complaints and MSPB appeal. Specifically, however, he bases his Complaint on the charges of retaliation delineated in six of the 19 complaints and in the MSPB appeal.³

Defendants concede that plaintiff's claims based on EEO complaints, MGOK90018, MGOK92020, and MGOK93016, and the Merit Systems Protection Board appeal were timely filed, and, therefore, are not time-barred. Defs.' Br. ¶¶ 18, 32, 51; Pl.'s Br. at 10. The parties dispute, however, whether plaintiff's claims, as set out in MGOK93019, MGOK94020 and MGOK94021, are time-barred due to plaintiff's failure to file an appeal with the EEOC or a civil action within 90 days. See Defs.' Br. ¶ 38; Pl's Br. at 11. Because the parties appear to agree that the viable claims in the judicial Complaint concern only six of the EEO complaints and the MSPB appeal, this memorandum opinion will discuss only those complaints and appeal, as well as Bullock's first three EEO complaints, which comprise the protected conduct against which defendants allegedly retaliated. Although Bullock bases his cause of action on discrimination as well as retaliation, the six EEO complaints and the MSPB appeal relate only to claims of retaliation.

Bullock's first three EEO complaints, MGOK9007, MGOK90010, and MGOK90011, arose from an incident occurring on March 8, 1990, when his rating official, Senior Master Sergeant Kenneth Harrison lowered Bullock's performance ratings. Id. ¶ 4. Bullock, who is white, alleged that Harrison, who is black, had discriminated against him on the basis of race. Id. After Bullock filed his first EEO complaint concerning the discrimination, his supervisors, James E. Thompson ("Thompson") and Lieutenant Colonel Vernon Holmes ("Holmes"), issued a letter of reprimand which was later reduced to an oral admonishment. Id. ¶ 5. Additionally, Bullock was allegedly subjected to abuse of authority and abusive behavior by Holmes. Id. ¶ 6. The Air Force issued a final decision on these three complaints on January 27, 1992, finding that Bullock had established by a preponderance of the evidence that management had discriminated against him on the basis of race and that the two latter incidents were retaliatory in nature.⁴ Id., Ex. 4 at 7, 11, 13. As a result, the Air Force changed Bullock's March 1990 appraisal to give him the highest possible rating, removed all references to the letter of reprimand/oral admonishment from Bullock's records, and awarded Bullock attorney fees. Id., Ex. 4. Bullock did not appeal the Final Agency Decision.

On November 4, 1991, a few months before the Air Force issued its Final Agency Decision regarding Bullock's first three complaints, Bullock filed his fourth EEO complaint, MGOK90018, based upon reprisal. Specifically, Bullock alleges that his supervisors, Holmes, Thompson and Robert Sharp ("Sharp"), had again retaliated against him for his race discrimination complaint by (1) not selecting him for supervisor training courses on June 12, 1991, (2) not selecting him for an Engineering Technician (GS-9) position on June 14, 1991, and (3) denying him a performance cash award on September 6, 1991. Id. ¶ 9, Ex. 5. The Air Force Review Board issued a final agency decision on Bullock's fourth EEO complaint on May 2, 1995, concluding that Bullock had failed to establish by a preponderance of evidence that the defendants' legitimate, nondiscriminatory reasons for their actions were pretextual. Id., Ex. 7 at 2.

In his Complaint, Bullock first alleges that he was denied equal training courses, i.e., CESMARS,⁵ as compared to other supervisors in his organization. Bullock Aff. ¶ 6; Defs.' Br. ¶ 10. Bullock contends that in retaliation for his previous EEO complaints against them, Holmes and Thompson improperly selected Staff Sergeant Eric Hogan ("Hogan"), the Non-commissioned Officer in Charge (NCOIC) of Bullock's section, to attend the CESMARS course. Defs.' Br. ¶ 10-11. The CESMARS course was meant to provide management skills relating to first-line and second-line supervision. Pl.'s Br. in Supp. of Pl.'s Resp. to Defs.' Mot for Sum.J. ("Pl.'s Br."), Ex. 4 at 3. Bullock, who was Hogan's first level supervisor, objected to Hogan's selection, contending that Hogan was not a supervisor and was not in charge of training in their shop. Pl.'s Br. at 2-3, Ex. 4 at 6.

Although Defendants concede that Hogan was the only CESMARS attendee who was not in charge of a section/shop, see Defs.' Br. ¶ 11, Ex. 7 at 17, they also state that he is considered "supervisory" in that he is the ranking military in the shop and is expected to take over Bullock's duties when Bullock is out. Defs.' Br., Ex. 7 (Sharp Aff. at 1, Thompson Aff. at 5). Moreover, Holmes states that he did not select the attendees, but instead that he "tasked" the selection to T. SGT. Casasanta, who was to obtain the names of the CESNARS nominees from the superintendents and Thompson. Defs.' Br., Ex. 7 at 35 (Holmes Aff.). Thompson also denies having anything to do with the selection process, stating that the "training monitors" made the selection. Id., Ex. 7 at 6 (Thompson Aff.). Sharp, too, denies any knowledge of the CESMARS selection process. Id., Ex. 7 at 16.

Bullock also alleges that he was passed over for a promotion to the position of Engineering Technician (GS-9) in retaliation for the EEO complaints he had previously filed. Bullock Aff. ¶ 7. Bullock applied for the position, but Thompson awarded it to Kenneth Latham ("Latham") because he felt that Latham's experience was "wider, more commercial, more in-depth, [and for a] longer length of time." Thompson Dep. at 31. Bullock, however, contends that he was more qualified for the job than Latham and that he had informed Holmes and Thompson about Latham's falsification of his resume some six months before the promotion decision was made.⁶ Pl.'s Br. at 3.

Bullock also claims that although he was eligible to receive a cash award for his superior performance rating during the period of July 1, 1990, through June 31, 1991, he was denied the award as a means of retaliation. Defs.' Br., ¶ 14. The defendants, however, contend that Bullock was not eligible for a cash award because he had received a promotion during that same time period; Performance Recognition Committee policy does not permit employees who are promoted to a higher grade during the rating period to receive a cash award. Id., Ex. 7 (Monk Aff.). There were apparently six other individuals who also had "superior" performance ratings, and, yet, did not receive a cash award. Pl.'s Br., Ex. 6 at 1; see also, Defs.' Br., Ex. 7 (Goins Aff., Sharp Aff., Holmes Aff.). In response, Bullock argues that "none of the employees who received a `superior' performance rating and did not receive a cash award were rated as high as plaintiff"⁷ and that the "policy" affected only one him. Pl.'s Br. at 3. Bullock also argues that because Holmes and Thompson fought his promotion,⁸ that it is "implausible" to suggest that "but for [his] promotion he would have received a cash award." Id. at 4.

On March 23, 1992, Bullock filed his fifth EEO complaint, MGOK92020, wherein he again alleged retaliation for his prior EEO activities. Defs.' Br., Ex. 6. In this complaint, he alleged that Thompson and Sharp conspired to abuse their power and to harass him. Id. This complaint resulted from Thompson and Sharp inviting Hogan to lunch on February 4, 1992. Id. ¶ 16. Bullock contends that Thompson and Sharp invited Hogan to lunch in order to question him about Bullock's EEO activities and work activities so that they could use the information against him. Bullock Aff. ¶ 9. Bullock further contends that he did not know Hogan's whereabouts, which compromised the scheduled work, and that Sharp later reprimanded him for not knowing where Hogan had...